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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> McGuinness, R. v [2024] EWCA Crim 1252 (06 September 2024) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2024/1252.html Cite as: [2024] EWCA Crim 1252 |
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CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT CANTERBURY
HIS HONOUR JUDGE SIMON JAMES 46ZY1348424
Strand London WC2A 2LL |
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B e f o r e :
MRS JUSTICE MAY DBE
MR JUSTICE BRYAN
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REX |
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- v - |
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GERARD McGUINNESS |
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Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
MISS M MILLAR appeared on behalf of the Crown
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Crown Copyright ©
MRS JUSTICE MAY:
Introduction
Facts of the offending
Appeal against length of sentence
"... I consider that the assault of the police officer was a particularly unpleasant use of unlawful violence which necessitates a further and consecutive sentence of imprisonment.
In my judgment, had you not had the good sense to plead guilty, I consider that you might not have been able to expect to receive a sentence of less than eight months had you been convicted after trial. I, therefore, reduce that by just over 25 per cent, to a sentence of 182 days."
Decision on length of sentence for the assault
The other offences
The applicable law
Low-value shoplifting
"(1) Low-value shoplifting is triable only summarily
(2) But where a person accused of low-value shoplifting is aged 18 or over, and appears or is brought before the court before the summary trial of the offence begins, the court must give the person the opportunity of electing to be tried by the Crown Court for the offence and, if the person elects to be so tried—
(a) subsection (1) does not apply, and
(b) the court must proceed in relation to the offence in accordance with section 51(1) of the Crime and Disorder Act 1998.
(3) 'Low-value shoplifting' means an offence under section 1 of the Theft Act 1968 in circumstances where—
(a) the value of the stolen goods does not exceed £200
(b) the goods were being offered for sale in a shop or any other premises, stall, vehicle or place from which there is carried on a trade or business, and
(c) at the time of the offence, the person accused of low-value shoplifting was, or was purporting to be, a customer or potential customer of the person offering the goods for sale."
Sending cases to the Crown Court for trial
"(1) Where an adult appears or is brought before a magistrates' court ('the court') charged with an offence and any of the conditions mentioned in subsection (2) below is satisfied, the court shall send him forthwith to the Crown Court for trial for the offence.
(2) Those conditions are—
(a) that the offence is an offence triable only on indictment other than one in respect of which notice has been given under section 51B or 51C below;
(b) that the offence is an either-way offence and the court is required under section 20(9)(b)7 21, 22A(2)(b), 23(4)(b) or (5) or 25(2D) of the Magistrates' Courts Act 1980 to proceed in relation to the offence in accordance with subsection (1) above;
(c) that notice is given to the court under section 51B or 51C below in respect of the offence.
(3) Where the court sends an adult for trial under subsection (1) above, it shall at the same time send him to the Crown Court for trial for any either-way or summary offence with which he is charged and which—
(c) (if it is an either-way offence) appears to the court to be related to the offence mentioned in subsection (1) above; or
(d) (if it is a summary offence) appears to the court to be related to the offence mentioned in subsection (1) above or to the either-way offence, and which fulfils the requisite condition (as defined in subsection (11) below).
[...]
(11) A summary offence fulfils the requisite condition if it is punishable with imprisonment or involves obligatory or discretionary disqualification from driving.
[... ]"
Committal for sentence of non-imprisonable and non-disqualifiable offences
"(1) This section applies where a magistrates' court ('the committing court') commits an offender to the Crown Court under—
(e) sections 14 to 19 (committal for sentence for indictable offences)
(f) paragraph 5(4) of Schedule 2 (further offence committed by offender given conditional discharge order)
(g) paragraph 24(2) of Schedule 10 (committal to Crown Court where offender convicted of further offence while community order is in force)
(h) paragraph 11(2) of Schedule 16 (committal to Crown Court where offender commits further offence during operational period of suspended sentence order)
(i) section 43 of the Mental Health Act 1980 (power of magistrates' courts to commit for restriction order)
(j) section 6(6) or 9(3) of the Bail Act 1976 (committal to Crown Court for offences of absconding by person released on bail or agreeing to indemnify sureties in criminal proceedings), or
(k) the Vagrancy Act 1824 (incorrigible rogues),to be sentenced or otherwise dealt with in respect of an offence ('the relevant offence').
(2) Where—
(a) the relevant offence is an indictable offence, and
(b) the committing court has power to deal with the offender in respect of another offence the committing court may also commit the offender to the Crown Court to be dealt with in respect of the other offence in accordance with section 23."
Application to this case
Procedure for correcting these errors
"(i) What power was exercised by the magistrates' court when sending or committing a case to the Crown Court?
(ii) Was the power was exercised erroneously?
(iii) If so, what are the consequences of the procedural error?
(iv) What steps can or should be taken to correct the error?"
"This depends on the answer to the third question. If the consequence of the error is that the Crown Court has no jurisdiction, then the matter can be remedied by the magistrates' court using the power under section 142 of the 1980 Act. Alternatively, a judge sitting in the Crown Court could use section 66 of the 1980 Act to exercise the power of a District Judge (Magistrates' Court) under section 142. However, although there is power to do that, it may not be appropriate to do so for the reasons explained in Gould at [87] – [93]."
Sitting as a Divisional Court
Sitting as a DJ(MC)
Conclusion
Miss Millar, can we move to the second of those offences?